UK
Surveillance of communications goes through the roofSummaryA special analysis on the surveillance of
telecommunications by Statewatch shows that the authorised surveillance
in England, Wales and Scotland has more than doubled since the
Labour government came to power in 1997.

Figures published by the Interception of Communications Commissioner
for England, Wales and Scotland (no figures have ever been made
available on Northern Ireland) for 2001 appear to show that the
number of interception warrants issued dropped from 1,900 in
2000 to 1,445 in 2001. But the true picture is quite the reverse.
Changes to warrants, "modifications", which previously
required a new warrant have been excluded from the figures -
when these are added it shows that the total number of warrants
issued in 1996 (the last full year of the Conservative government)
was 1,370 and for 2001 the total was 3,427. Moreover, even these
figures are a major under-estimate due to changes introduced
under the Regulation of Investigatory Powers Act 2000 (RIPA).

Tony Bunyan, Statewatch editor, comments:

"The official figures are a travesty. Figures are provided
which show that surveillance warrants have doubled since Labour
came to power in 1997 - they are now more than double the figures
in the Second World War. But no figures are given on other major
changes brought in under RIPA 2000 that would show the real extent
of interception.

The new method of issuing warrants and changes to them
is said to make life easier for officials but at the same time
it hides from public view the true extent of surveillance.

The Interception Commissioner admits that the great majority
of warrants are issued to combat crime so this enormous expansion
cannot be explained away as combating terrorism (national security)."

Analysis
The annual report of the Interception of Communications Commissioner
for 2001 was published in October 2002. The report, by the Rt
Hon Sir Swinton Thomas, as usual shows that no complaint by a
member of the public to the Investigatory Powers Tribunal has
been upheld.

The report appears to show that the number of warrants issued
dropped significantly to the lowest for five years. However,
the true picture is quite different.

On the face of it the number of warrants issued to conduct communications
surveillance (telephones, mobiles and letters) fell in England
and Wales from 1,608 to 1,314 and in Scotland from 292 to 131.
But the Commissioner's report says that the continued increase
in serious and organised crime and the "increased facility
to counter it" (ie: new means of surveillance) are:

"the main cause of the larger number of warrants. The
significantly higher level of warrants sought each year"

From these figures it would seem that warrants for the surveillance
of communications (telephones etc) and mail-opening have dropped
significantly after 2000.

However, quite the reverse is true.

From July 1998 a major change in the interpretation of the 1985
Interception of Communications Act (IOCA) meant that where previously
any change to the initial warrant (eg: a person moved or changed
phone numbers), known as a "modification", led to a
new warrant being issued for all instances concerning serious
crime. As noted by the them Commissioner, Lord Nolan, in the
report for 1999:

"The great majority of warrants issued in England, Wales
and Scotland remain related to the prevention and detection of
serious crime"(p3)

Warrants issued under the two other categories on grounds of
national security or "safeguarding the economic well-being
of the UK" can be modified by a "senior official".

This means that in order to get historically comparative total
figures the number of "modifications" carried out each
year need to be added to the number of initial warrants. The
additional figures, post July 1998, for "modifications"
are:

Until 1996 the highest annual number of warrants issued was 1,682
in 1940 at the onset of World War II.

Since the Labour government came to power in 1997 communications
surveillance has therefore doubled.

However, this is only the part of the picture for which precise
figures are provided. Three changes following the introduction
of the Regulation of Investigatory Powers Act (RIPA) on 2 October
2000 mean that the increase in surveillance is much, much greater.

The first change, as noted by the Commissioner, is that warrants
are now issued against named individuals rather than as an order
placed on a communications provider. This means that a warrant
against an individual can state that all their mail, phone-calls,
mobile calls, e-mails and internet usage are to be placed under
surveillance. Or put another way round, now one warrant against
an individual is used in place of up to five separate warrants
(served potentially on five different service providers) previously.

Warrants used to be issued simply to the Post Office (mail) and
British Telecom (phone), under Section 2 of the IOCA 1985. But
the growth of privatisation and diverse means of communication
has changed the demands of the agencies.

Thus a warrant is now issued to the requesting agency (eg: MI5,
MI6, GCHQ, NCIS etc) which includes "schedules" that
list addresses, numbers, "apparatus or other factors, or
combination of factors" (eg: the location of a mobile phone
users at a particular point in time). The agencies then place
an interception order on any service provider.

There is little doubt that this change should, in theory, result
in fewer application for warrants or put another way, if the
overall number of warrants issued stays the same then more people
are being placed under surveillance. It is not possible to determine
the numercial increase in warrants due to this factor.

The Commissioner is, at times, economical with the truth. Throughout
the report he writes of "individuals" or "persons"
but there is only one reference to "premises". Like
the previous IOCA 1985, the new RIPA 2000 in Section 8.1. allows
for warrants to be issued for the surveillance of "premises"
(as distinct from a person). This means that a house or office
occupied by a group of people or an organisation (which may be
small or very large) are covered by one warrant. No breakdown
is given of the number of "premises" placed under surveillance.

The second major change under RIPA 2000, as distinct from the
IOCA 1985, is the periods for which warrants are issued.

Under RIPA 2000 warrants can be issued on four grounds (Section
5.3) the fourth of which is new:

(a) in the interest of national security
(b) for the purpose of preventing or detecting serious crime
(c) for the purpose of safeguarding the economic well-being of
the UK
(d) to give implement "any international mutual assistance
agreement" concerning para.b above (ie: serious crime).

Under the IOCA 1985 warrants covering the then three different
purposes were all for two months. Renewals, were for six months
for categories (a) and (c) and one month for (b) serious crime,
the most numerous category. RIPA 2000 greatly extended these
periods. Initial warrants for categories (a) and (c) is now six
months with renewals for another six months and for category
(b), serious crime, an initial three months with renewals for
three months. Put simply, the periods covered by warrants has
in effect been doubled. For example, for serious crime an initial
warrant plus one extension used to cover three months, now it
is six months. For national security (a) and "economic well-being"
(b)a warrant used to cover eight months and now it is twelve
months.

Again it takes little imagination to see that if, for the administrative
convenience of the Home Office and the agencies (ie: a lot less
work), the periods have been extended in this way there should
either be significantly fewer warrants issued, or if the same
or a greater number are issued then the rise in warrants requires
explanation and quantification.

The knock-on effect is compounded because, as the Commissioner
notes, now a single warrant for the surveillance of an individual
or premises has to be renewed. Whereas before: "Under IOCA,
warrants for intercepts with different CSPs" (communications
service providers) had to be renewed separately thus adding to
the total number of warrants issued.

Overall, the figure for the number of initial warrants issued
in 2001, 1,445, disguises the fact that i) 1,788 previously included
"modifications" are excluded; ii) that the periods
for warrants in the most numerous category, serious crime, have
increased by 50% (initial warrant) and 100% (renewals); iii)
where previously between one and five warrants were issued to
communications service providers now only one is issued to cover
a person or premises (which also has a knock-on effect on the
number of renewals).

The effect of these changes are alluded to in the Commissioner's
report. On the Metropolitan Police Special Branch (MPSB) he writes
that:

"Statistically, MPSB warrants are now held for longer
than in the past - typically over a period of several months
rather than days"

The example given by the National Criminal Intelligence Service
(NCIS) to the Commissioner shows that in the last year of the
IOCA 1985 they had "just over 600 warranted target addresses"
(individuals and premises). Whereas as in the first year of RIPA
2000 they had 800 target addresses "deriving from only just
over 400 warrants". While the number of warrants dropped
by a third (from 600 to 400) the number of target addresses rose
by a third (from 600 to 800).

Taken alone the overall rise in warrants issued (including "modifications")
showed a doubling of surveillance since 1997. The additional,
unqauntified, issuing of single warrants to agencies where previously
between one and five may have been issued to CSPs and the extended
periods of the warrants means that this is a gross under-estimate
of the growth in surveillance since the Labour government came
to power.

Furthermore it must be noted that Chapter II of Part I of RIPA
is not yet in force because when it was revealed that the Home
Offices list of designated bodies extends to 1,039 public authorities
there was public uproar and the proposal was put on hold. Chapter
II covers the access of designated bodies to communications data
(traffic data and personal details but not content data). The
Commissioner will be responsible for this mode of surveillance
too and notes that his role is to be extended to "64 police
authorities and an as yet uncertain number of public authorities
[who] will be authorised to acquire and disclose communications
data".

Theoretically the agencies have no legal powers to obtain such
data but through the "voluntary" cooperation of service
providers this new form of surveillance, which is unquantified,
is widespread (see below).

"Conspiracy" or norm?

The Commissioner tries to confront widespread suspicion that
communications surveillance is much wider than admitted. "Many
members of the public", he says, "are suspicious about
the interception of communications.. people tend to be suspicious
of what takes place in secret, and are worried about the "big
brother" concept". He then answers his own question
and shows a touching faith in the strict implementation of the
law by stating that:

"the concerns are, in fact, unfounded. Interception of
an individual's communications takes place only after a Secretary
of State has granted a warrant.. Of course, it would theoretically
be possible to circumvent this procedure, but there are extensive
safeguards to ensure this does not happen.. Furthermore, any
attempt to get round the procedures for legal interception would,
by reason of the safeguards, involve a major conspiracy within
the agency concerned which I believe would, for practical purposes,
be impossible" (para 10, p3)

The security and intelligence agencies (and the Special Branch)
have always exceeded their legal powers since they were respectively
created in 1883, 1909 and 1911). For example, from 1977 British
Telecom routinely supplied agencies on request lists of peoples'
calls and the numbers involved. This was not legalised until
RIPA came into effect in October 2000. For years some communications
providers of mobile phone, e-mail and internet services have
routinely flouted the Data Protection Act by retaining traffic
data (and in some cases content data) and supplied data to the
agencies. The Government Communications Headquarters (GCHQ),
which operates under the Foreign Office on behalf of MI6 (the
UK's overseas intelligence agency) and Defence Intelligence,
are issued warrants for specific investigations. But GCHQ contributes
to, and has access to, data gathered under the ECHELON system
which gathers all communications traffic across the world and
then applies "dictionaries" of key words to search
for intelligence (see, "Interception Capabilities 2000",
Duncan Campbell, April 1999).

Equally important is the routine "hacking" of service
providers by MI5, MI6 and the Special Branch (this developed
out of creating systems to counter "hackers"). It can
be done very quickly by illegally entering a server and downloading
all data (traffic and content) on an individual or group within
minutes - and can be undertaken in the office, at home or in
the field. To this extent modern forms of communication, e-mails
and internet sites and usage, "facilitate" unaccountable
surveillance.

These practices do not constitute a "major conspiracy",
rather they follow a well-trodden path whereby the practices
of these agencies have always exceeded their legal powers - which
are usually, but not always, made lawful years later.